History of copyright
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This article deals with the history of copyright law.
Chronology
Prehistory of copyright
According to tradition, the first "copyright" dispute occured around 560 between Saint Columba and Saint Finnian when Columba secretly copied a psalter Finnian possessed after being granted permission to look at it. When Finnian found out about Columba's copy, he disputed Columba's right to it, and Diarmaid mac Cearbhaill, High King of Ireland, ruled in favor of Finnian, saying "To every cow her calf, and to every book its copy", seemingly ignoring the fact that Columba was the one who produced the copy.
The origins of copyright systems are generally placed in the practice of various monarchs in granting "letters patent", arbitrary grants of monopoly over a particular practice or trade. Such grants were an invaluable source of power for rulers who possessed much theoretical authority, but little cash (indeed, the abuse of monopolies by the early Stuarts was a major factor leading to the English civil war).
In the two centuries following the invention of the printing press, such grants were given periodically to printers (and occasionally authors) with regard to particular works.
In Britain, the culmination of this practice was the Licensing Act of 1662, which granted a monopoly on the entirety of English publishing to the Stationers' Company of London (the quid pro quo for this grant was censorship of heretical and seditious material). The Stationer's company had developed its own inter-publisher system for regulating competition, now known as Stationer's copyright, which was effectively a private copyright system made enforceable by the Stationers' monopoly.
- similar contemporary developments elsewhere (such as Venice)
- With the repeal of the Licensing Act in 1681 and widespread objection to monopolies, publishers were left in a disadvantageous position
Early copyright statutes
The first copyright law, in the modern sense, was the English Statute of Anne, enacted in 1709. It granted exclusive rights to authors, rather than publishers, and it included protections for consumers of printed works, ensuring that publishers could not control their use after sale. It also limited the duration of such exclusive rights to 28 years (14 years with an optional renewal), after which all works would pass into the public domain.
Although the principal lobbyists for the Statute of Anne were publishers — whose position had suffered from anti-monopoly sentiment in the preceding decades — it was at this point that the publishing industry began arguing for authors rights. This strategy created legal monopoly privileges which could be assigned to a publisher, without the same levels of political opposition as a direct publishers' monopoly [Lowenstein]; the strategy remains in widespread use today.
- Relationship between common law and statutory copyright decided through Millar v. Taylor and Donaldson v. Beckett; English copyright as a matter of policy rather than natural rights.
- the copyright clause in the United States Constitution
- Wheaton v. Peters
Origins of continental European tradition
Declarations of the rights of authors (and inventors) during the French Revolution. Genesis of the continental European traditions of moral and economic rights.
Early internationalisation
The Berne Convention of 1886 first established the recognition of copyrights between sovereign nations. (Copyright protection was also provided by the Universal Copyright Convention of 1952, but that convention is today largely of historical interest.) Under the Berne convention, copyright is granted automatically to creative works; an author does not have to "register" or "apply for" copyright protection. As soon as the work is "fixed", that is, written or recorded on some physical medium, its author is automatically granted all exclusive rights to the work and any derivative works unless and until the author explicitly disclaims them, or until the copyright expires.
- evolution to deal with successive waves of new technology
- origins of collecting societies
- conflicts (then resounding lack of conflict) over term extensions
Diversion: copyright and communism
Theoretically, one can conceive of "socialist" alternatives to the concept of copyright as a form of property — systems in which copyright is an active welfare or support mechanism for artists, instead of or in addition to, an exclusive right. These ideas probably found their strongest expression in Scandinavian law.
The Eastern European communist states professed to employ socialist principles in rewarding their artists and authors, but the reality of their copyright systems was deeply entangled with censorship and state control of culture. Cultural workers in the Soviet Union did well if they could employ blat to their advantage and convince the right Party officials to favour their work.
The Soviet Union did had a number of interactions with the international copyright system:
- Unsuccessful lawsuits brought by Western lawyers in an attempt to make the Soviet State recognise foreign copyrights or pay royalties to foreign authors (the USSR did occasionally pay foreign authors for the use of their works, but only if they were of a suitable ideological colour).
- Accession to the Universal Copyright Convention, with the intention of allowing the Soviet state to appropriate international copyright in works by dissident Soviet authors, and thereby control the distribution of those works outside of the Communist bloc.
Modern US copyright legislation
- enactment of the Digital Millennium Copyright Act
- enactment of the Family Entertainment and Copyright Act
Recent history: globalisation and technological crisis
- digital technology introduces a new level of controversy into copyright policy
- inclusion of software as copyright subject matter
- enactment of TRIPS
- databases
- enactment of the WIPO Copyright Treaty; nations begin passing anti-circumvention laws
Analysis: recurring themes in the history of copyright
The history of copyright has several key themes: responses to innovations in media technologies, expansions in the definition, scope and operation of copyright, and international dissemination of the evolutions occurring in particular states.
Responses to technological innovation
The genesis of copyright can be seen as a process through which capitalist societies found a way to wed the printing press and the marketplace (see also print culture).
This commercial regulatory system, designed for the printing press, was successively expanded to include photography, phonography, film, broadcasting and photocopying (reprography) as those technologies became widespread. The underlying metaphor of "literaty and artistic property", while strained at times, was able to muster sufficient institutional momentum to survive and prosper.
Expansions in scope and operation
- Move from common law and ad-hoc grants of monopoly to copyright statutes
- Expansions in subject matter (largely related to technology)
- Expansions in duration
- Creation of new exlusive rights (such as performers' and other neighbouring rights)
- Creation of collecting societies
- Criminalisation of copyright infringement
Regulatory leadership and internationalisation
- Early role of the UK; reciprocity and the Berne convention; the United States as a "pirate" nation
- Shift to leadership by the US during the 20th century; the South as a pirate hemisphere (though some expansions continued to flow from Europe)
References
- Dietrich A. Loeber, `"Socialist" Features of Soviet Copyright Law', Columbia Journal of Transnational Law, vol. 23, pp 297--313, 1984.
- Joseph Lowenstein, "The Author's Due : Printing and the Prehistory of Copyright", University of Chicago Press, 2002
- Christopher May, "The Venetian Moment: New Technologies, Legal Innovation and the Institutional Origins of Intellectual Property", Prometheus, 20(2), 2002.
- Lyman Ray Patterson, "Copyright in Historical Perspective", Vanderbilt University Press, 1968.
- Brendan Scott, "Copyright in a Frictionless World", First Monday, volume 6, number 9 (September 2001), http://firstmonday.org/issues/issue6_9/scott/index.html.